Can fintech help mentally incapacitated people?

written by Sandra McDonaldpublished on October 24, 2018

This blog is written by Sandra McDonald; she was Public Guardian for Scotland for 14 years (2004-2018). The Public Guardian is a statutory regulator, supervising and supporting those who administer the affairs of persons no longer mentally able to do so personally.

As fintech firms continually develop new solutions to improve the way people deal with their finances, it is important for them to keep in mind that their users can have very diverse needs. When designing innovative solutions it is vital to consider things such as power of attorney or capacity assessing.
Equally, disruption in the way mentally incapacitated people can access money is still to happen and provides a great opportunity for nw entrepreneurs.

We're looking at some issues fintech should consider:

Power of Attorney
Power of attorney is perhaps the best known legal method by which one person is authorised to administer the affairs of another; yet I hear criticism regularly about Organisations not truly understanding power of attorney. Indeed I have experienced this personally when an Organisation was insistent that my brother and I must both sign a particular document, despite the fact that we are appointed jointly and severally.
Their systems just couldn't cope with this specific case.

Equal Treatment for Persons with Mental Incapacity
Persons with mental incapacity are persons with disability and thus must not be treated less favourably than a person who does not have incapacity. Yet often I see a higher ‘bar’ to be met for those administering another person’s affairs than would be the case if they were managing their own affairs.

Capacity Assessing
Organisations, for ease, tend to categorise people as either capable or incapable but capacity is not black or white. It is not linear or on a continuum; it can fluctuate be this over time or over decisions.
Can new technologies such as AI help identify levels of capabilities and offer appropriate support?

Convention on the Rights of Persons with Disabilities
Deciding whether someone has capacity or not at a given time, for a given decision, will become ever more pertinent as the United Nations Convention on the Rights of Persons with Disabilities requires us, Scotland, to allow persons with incapacity to exercise their own legal capacity – sounds counter intuitive but comply we must. We must allow persons with incapacity to participate, as far as is possible, in decisions that affect them. Most frequently you will be familiar with attorneys advising what is best for the person they represent and respecting this, but this puts both the attorney and the Organisation in breach of the United Nations requirements. Are you confident that you support the incapable person in their own decision making? What if you felt what the person themselves wants is at odds with what the attorney is asking you to do. How do you manage such conflicts?

Digital Access?
I often hear about technological inadequacies – for example a system only has the option of listing a person as ‘power of attorney’ which, if they have some other form of authority, may offer them a higher level of access than thy have authority for. This exposes you to a claim if the person then abuses the erroneous wider powers you have given them.

Future
These are todays issues but a review of the law is in progress; are you in danger of just getting up to date as it all moves on? What should you do to prepare yourself for tomorrow?